To defeat summary judgment on a defamation claim, a public figure needed to “produce clear and convincing evidence of actual malice at the summary judgment stage.” In Elsten v. Coker, No. M2019-00034-COA-R3-CV (Tenn. Ct. App. Oct. 4, 2019), plaintiff and defendant were both running for mayor of Hendersonville. Before the election, defendant’s campaign disseminated a pamphlet with two statements about plaintiff that plaintiff found objectionable: (1) that as an alderman plaintiff was “caught in an insider deal to sell stolen property to the Hendersonville Parks Department” and (2) that plaintiff was “currently under investigation by the Tennessee Ethics Commission for campaign finance violations relating to illegal contributions from a construction company owner.”
Plaintiff filed this defamation action, and the trial court granted defendant summary judgment, finding that plaintiff “did not produce clear and convincing evidence of actual malice[.]” The Court of Appeals affirmed.
Plaintiff in this case was undisputedly a public figure, so the higher actual malice standard applied to this defamation case. The Court thus began its analysis with a review of what exactly a plaintiff must do to show actual malice. “When the plaintiff is a public figure, he or she must prove by clear and convincing evidence that the defendant made the defamatory statements with knowledge the statements were false or with reckless disregard as to their truth,” with reckless disregard being defined as “the purposeful avoidance of the truth.” (internal citations omitted). In a case involving a public figure, “a defendant’s failure to investigate information provided by others before publishing it, even when a reasonably prudent person would have done so, is not sufficient by itself to establish actual malice.” (internal citation omitted).
The Court first analyzed the insider deal statement. Defendant argued that the statement was substantially true, as discovery showed that plaintiff had acquired a piece of equipment at a low price, sold it to the high school soccer booster club, and then been informed that the equipment was stolen, but the court disagreed. The Court noted that “to determine whether the statement was materially false, we ask whether an accurate statement would produce the same effect on the mind of the reader as the inaccurate statement.” (internal citation omitted). Here, plaintiff had some authority over the parks department as an alderman, but he was not related to the high school booster club, and using the term “insider deal” would therefore have made “no sense to the average reader” in this scenario. Accordingly, the Court rejected the defense that the statement was materially true.
The Court, however, still ultimately affirmed summary judgment on this statement. The evidence showed that this incident “had been discussed in political circles for a number of years” and was “fairly common knowledge.” Defendant testified that he talked to around six people who stated the sale was made to the parks department, as stated in his pamphlet. The story had also been reported on an anonymous blog. The Court reasoned:
[Plaintiff] argues that a rumor and an anonymous blog are unreliable sources of information… While a reasonably prudent person may question such sources, the actual malice standard does not require that [defendant] be a reasonably prudent person. The question is not whether [defendant] should have entertained serious doubts as to the story’s truth; rather, the question is whether he, in fact, did entertain serious doubts. It is undisputed that the story was not a figment of [defendant’s] imagination. …We recognize that [defendant] cannot automatically insure a favorable verdict by testifying that he believed the rumor. But [plaintiff], in the face of [defendant’s] testimony, must present clear and convincing evidence showing [defendant] did not believe it. The problem for [plaintiff] is that the record does not disclose such evidence.
(internal citations omitted).
Plaintiff argued that defendant’s “failure to ask [plaintiff] directly if the rumor was true or to read the police report containing [plaintiff’s] version of events proves [defendant] purposefully avoided the truth.” The Court rejected this argument, finding that based on additional evidence in this case, “a reasonable juror would not conclude that [defendant] thought [plaintiff] would be truthful.” Summary judgment as to this statement was affirmed.
The Court then analyzed the statement about the ethics investigation, ultimately affirming summary judgment on the basis that this statement was not materially false. In his deposition, plaintiff admitted that he was called by the Tennessee Ethics Commission about an allegation of campaign finance violations, that the allegation was “related to illegal contributions from a construction company owner,” and that there was a hearing about the allegation. Based on these admissions, the Court found plaintiff failed to show that the statement was materially false, and it further noted that plaintiff “failed to submit any evidence showing [defendant] published the statement with knowledge of its falsity or with reckless disregard as to its truth.” Summary judgment was thus also affirmed as to this statement.
This case is a good read for anyone considering representing a public figure in a defamation case. We don’t see many of these cases, and this opinion discusses the high standard that must be met by a public figure plaintiff.